1 RESTATED AND AMENDED DECLARATION OF TRUST OF THE JAMES E. AND BEVERLY ROGERS FOUNDATION This Restated and Amended Declaration of Trust (the "Declaration") of the JAMES E. AND BEVERLY ROGERS FOUNDATION (the “Foundation”) is to be effective as of the 1st day of August, 2013 (the “Effective Date”), with James E. Rogers and Beverly Rogers as Grantors and those Persons as set forth below as Trustees. BACKGROUND A. The Grantors desire to establish the James E. and Beverly Rogers Foundation (the “Foundation”) as a charitable foundation under the provisions of Section 501(c)(3) of the Internal Revenue Code of 1986, as amended and any successor provision of any subsequent revenue law (the “Code”) for the purposes set forth in this Declaration. The Grantors intend that the Foundation shall be a “Type I” supporting organization (a "Type I Supporting Organization") within the meaning of, and as such Type I Supporting Organizations are defined in Section 509(a)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), the Regulations under the Code and any corresponding provision of any subsequent federal tax law. The Foundation is to be such a Type 1 Supporting Organization by virtue of supporting, and being controlled by (1) the Law College Association of the University of Arizona (the “Law College Association’) as one of two “supported organizations,” which Law College Association is organized and operated for the benefit and on behalf of the University of Arizona James E. Rogers College of Law (the “College of Law”) and (2) the Black Mountain Institute of the University of Nevada, Las Vegas (the "BMI") as the second “supported organization” and by exclusively conducting its activities for the benefit and assistance of, and to carry out the purposes and functions of, either of the two “supported organizations.” Both of the Law College Association and the Black Mountain Institute of the University of Nevada, Las Vegas are organizations described in Section 501(c)(3) and Sections 509(1) or (2) of the Code. In all respects, this Declaration is to be interpreted and, if necessary, amended to comply with the requirements of a Type I Supporting Organization. B. The Grantors intended that the Grantors would serve as Trustees (the "Founder Trustees") for the period of their lifetimes or until their Incapacity. One of the initial (BOARD OF REGENTS SPECIAL MEETING 04/24/15) Ref. BOR-11b, Page 1 of 34
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RESTATED AND AMENDED DECLARATION OF TRUST OF THE
JAMES E. AND BEVERLY ROGERS FOUNDATION
This Restated and Amended Declaration of Trust (the "Declaration") of the JAMES E.
AND BEVERLY ROGERS FOUNDATION (the “Foundation”) is to be effective as of the 1st
day of August, 2013 (the “Effective Date”), with James E. Rogers and Beverly Rogers as
Grantors and those Persons as set forth below as Trustees.
BACKGROUND
A. The Grantors desire to establish the James E. and Beverly Rogers Foundation
(the “Foundation”) as a charitable foundation under the provisions of Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended and any successor provision of any subsequent
revenue law (the “Code”) for the purposes set forth in this Declaration. The Grantors intend
that the Foundation shall be a “Type I” supporting organization (a "Type I Supporting
Organization") within the meaning of, and as such Type I Supporting Organizations are
defined in Section 509(a)(3) of the Internal Revenue Code of 1986, as amended (the "Code"),
the Regulations under the Code and any corresponding provision of any subsequent federal
tax law. The Foundation is to be such a Type 1 Supporting Organization by virtue of
supporting, and being controlled by (1) the Law College Association of the University of
Arizona (the “Law College Association’) as one of two “supported organizations,” which Law
College Association is organized and operated for the benefit and on behalf of the University
of Arizona James E. Rogers College of Law (the “College of Law”) and (2) the Black
Mountain Institute of the University of Nevada, Las Vegas (the "BMI") as the second
“supported organization” and by exclusively conducting its activities for the benefit and
assistance of, and to carry out the purposes and functions of, either of the two “supported
organizations.” Both of the Law College Association and the Black Mountain Institute of the
University of Nevada, Las Vegas are organizations described in Section 501(c)(3) and
Sections 509(1) or (2) of the Code. In all respects, this Declaration is to be interpreted and, if
necessary, amended to comply with the requirements of a Type I Supporting Organization.
B. The Grantors intended that the Grantors would serve as Trustees (the "Founder
Trustees") for the period of their lifetimes or until their Incapacity. One of the initial
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Trustees, James E. Rogers, passed away subsequent to the Effective Date and has been
replaced as a Founder Trustee by Rory Reid, as provided in the initial Declaration of Trust.
Beverly Rogers, as a Grantor and initial Founder Trustee, and as the Trustee of the James E.
Rogers Trust (such trust being the successor to the estate and assets of James E. Rogers), by
way of the execution and delivery of this Declaration, hereby confirms such appointments of
the Founder Trustees.
C. In addition to the two Founder Trustees, there shall always be three (3) Trustees
(the "Arizona Trustees") to serve at the pleasure of the Board of Directors of the Law College
Association of the University of Arizona (the “Law College Association”) and there shall
always be three (3) Trustees (the “UNLV Trustees”) to serve at the pleasure of the Board of
Regents of the University of Nevada, Las Vegas. (“UNLV”). As of the date of this
Declaration, the three (3) Arizona Trustees are: (1) Marc L. Miller, Dr. Peter Likins and Toni
Massaro. As of the date of this Declaration, the three UNLV Trustees are: (1) Marcia
Turner, (2) Bart Patterson and (3) Gerry Bomotti. The Founder Trustees have designated
Rory Reid to act as “Chairman” so long as he shall serve as a Trustee of the Foundation. So
long as he shall serve, Rory Reid shall be designated as “Chairman.” If Beverly hereafter
ceases to serve as a Founder Trustee, then Rory Reid shall be the sole Founder Trustee. If all
of Beverly, James, and Rory Reid cease to serve due to resignation, Incapacity, or death, then
there shall be no successor Founder Trustee, and the Founder Trustee class shall lapse.
D. The Grantors have made gifts to the Foundation, and the Grantors, and other
Persons other than the Grantors, may in the future make gifts to the Foundation that the
Foundation shall use or apply for the charitable purposes specifically described in this
Declaration, namely the support of the Law College Association and/or the support of BMI.
For all purposes of this Declaration, the term "Person" shall mean any individual, partnership,
limited partnership, limited liability company, corporation, trust, charitable organization of
any nature, government, governmental agency or any subdivision of, or entity created by and
controlled by, any government, governmental agency or other governmental unit of any
nature.
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E. The Foundation shall be operated exclusively for charitable, educational, or
scientific purposes within the meaning of Section 501(c)(3) of the Code, and at all times shall
serve as a supporting organization within the meaning of Section 509(a)(3) of the Code by
conducting or supporting activities for the benefit of, or to carry out the purposes of, the Law
College Association and/or the BMI, each of which is a publicly-supported charity.
F. Following the appointment of the Arizona Trustees and the UNLV Trustees, and
subject always to the provisions of this Declaration of Trust, the Board of Trustees shall only
have the power to affect amend and modify this Declaration as is necessary or desirable for
the purposes of, and solely for the purposes of: (1) establishing or maintaining the status of
the Foundation as a charitable organization under Section 501(c)(3) of the Code; (2) ensuring
that the Foundation shall be operated pursuant to all of the requirements of Section 501(c)(3)
of the Code and accompanying Treasury Regulations and applicable Internal Revenue Service
rulings, notices or other similar pronouncements and the requirements of all other applicable
law to which the Foundation is subject (including, without limitation, any laws of the State of
Nevada or the State of Arizona); and/or (3) ensuring that the Foundation establishes and
maintains the status of a Type I Supporting Organization reflecting any provisions or items
that may be required by the Internal Revenue Service with respect to such status.
Declaration of Trust
The parties hereto, intending to be legally bound by the terms of this Declaration, and
for the purposes herein set forth, do hereby declare and agree as follows:
Article I
Establishment of Trust as Charitable Foundation
Section 1.1 Organization of the Foundation. The Foundation is hereby
established and organized to receive and maintain real or personal property, or both, subject to
the restrictions and limitations hereinafter set forth. The Foundation shall be operated
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exclusively for charitable, educational, or scientific purposes within the meaning of Section
501(c)(3) of the Code, and at all times shall have the status of a Type I Supporting
Organization within the meaning of Section 509(a)(3) of the Code by conducting or
supporting activities for the benefit of, performing the functions of, or carrying out the
purposes of (A) the Law College Association and supporting its programs and activities
(including, without limitation, supporting programs and activities that are joint programs and
activities between the Law College Association and/or the College of Law and other
branches, departments or divisions of the University of Arizona) and (B) the BMI (including,
without limitation, supporting programs and activities that are joint programs and activities
between the BMI and other branches, departments or divisions of UNLV). The Law College
Association and the BMI are each organizations described in Section 501(c)(3) and Sections
509(1) or (2) of the Code. Each of the Law College Association and the BMI is a division of,
or exclusively supports a division of, public institutions of higher learning located in the
United States funded and operated by the State of Arizona and the State of Nevada
respectively. The Foundation shall be operated exclusively for the benefit of, to perform the
functions of, or to carry out the purposes of, the Law College Association and the BMI. The
Foundation may make any distribution of its funds to one or the other or both of (X) the Law
College Association (for the benefit of the College of Law) and/or (Y) the BMI, directly or
through the specific BMI designation of programs or activities which BMI is conducting, or
take any action which is consistent with and in accordance with the Foundation conducting its
affairs in all respects as provided in this Section 1.1 and in Article II below, for the benefit of
the Law College Association and or the BMI so that the Foundation will always be organized
and operated in such a manner so as to qualify as an organization described in Section
501(c)(3) of the Code.
Section 1.2 Name; Address. The Foundation established pursuant to this
Declaration shall be known as the James E. and Beverly Rogers Foundation. The
Foundation’s primary address shall be as set forth in Exhibit 1.2, or at such other place as the
Trustees shall from time to time determine.
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Section 1.3 Transfer of Assets. As of the Effective Date, the Grantors transferred
to the Foundation those assets described in Exhibit 1.3 attached hereto, which Exhibit 1.3 is
incorporated by reference herein. The Grantors, or any other Persons, may from time to time
transfer additional assets to the Foundation. The assets set forth on Exhibit 1.3, and all
additional assets transferred from time to time by any Person to the Foundation, shall be held,
administered, applied and distributed exclusively as set forth in this Declaration for the
purposes set forth in Section 1.1 above.
Article II
Operation of the Foundation
Section 2.1 In General.
2.1.1 Exclusive Operation as a Charitable Foundation. The Foundation shall
be exclusively operated and administered for the purposes for which it was established as set
forth in Section 1.1 above. The Board of Trustees shall not take or omit to take any action if
such action or omission is inconsistent with the operation of the Foundation exclusively for
the purposes set forth in Section 1.1 above. No part of the Foundation’s assets or earnings
shall at any time or in any manner inure to the benefit of any private Person, member, entity
or individual. The Foundation shall not engage in any action or activity any part of which is
carrying on propaganda, or otherwise attempting, to influence legislation. The Foundation
shall not participate in, or intervene in (including the publishing or distributing of statements),
any political campaign on behalf of (or in opposition to) any candidate for public office.
Nothing contained in this Article II shall prohibit the Foundation from paying to a Trustee or
an individual reasonable compensation for services rendered to the Foundation or affecting
one or more of its purposes.
2.1.2 Foundation’s Actions To Be Consistent with Section 501(c)(3) of the
Code. Notwithstanding any other provision of this Restated Declaration, the Foundation
shall not conduct or carry on any activities not permitted to be carried on by:
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(A) an organization exempt from taxation under the provisions of Section
501(c)(3) of the Code and the accompanying Treasury Regulations thereunder, as they now
exist or as they may hereafter be amended or modified; or
(B) an organization contributions to which are deductible under Section
170(c)(2) of the Code and accompanying Treasury Regulations thereunder, as they now exist
or as they may hereafter be amended or modified.
2.1.3 Distributions of Income and Principal. All Foundation income, net of
reasonably necessary Foundation expenses and all amounts of Principal shall be distributed to
the Law College Association and/or the BMI at such time or times, and in such proportions as
the Board of Trustees, in their discretion, shall determine by majority vote; provided,
however, that the Board of Trustees shall make all such distributions of income or Principal as
may be necessary or desirable to comply with all requirements of law. The Board of
Trustees, by majority vote, may further cause the Foundation to make distributions of income
or Principal to the Law College Association and/or the BMI with respect to, or to fund,
programs conducted jointly by the Law College Association (directly or in conjunction with
the College of Law) or by BMI with any other division or department of the applicable
university. Discretionary distributions of principal, as the Board of Trustees may determine
from time to time by majority vote of the Board of Trustees, may consist of some or all of the
remaining assets of the Foundation. If all assets of the Foundation are distributed under this
Section 2.1.3, the Foundation shall terminate. For all purposes of this Declaration,
Foundation income and principal (or corpus) shall be determined in accordance with generally
accepted trust accounting principles under the trust accounting laws of the State of Nevada;
provided, however, that for all purposes of this Declaration, and notwithstanding any
provisions of generally accepted trust accounting principles under Nevada trust accounting
law are to the contrary, trust principal (or corpus) shall in all events include all proceeds
(including, without limitation, all income and all gain) from the sale, exchange or other
disposition of any nature of any asset held by the Trust (other than the income received from
the sale of inventory in the ordinary course of business), any dividends received in the nature
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of extraordinary dividends and all other income or gain received by the Trust relating to an
extraordinary item (i.e., all items of income and gain that are not received on a periodic base
in annual or more frequent installments in relatively even amounts for each period).
Section 2.2 Prohibition of Certain Acts. In addition to the operational
requirements set forth in Articles I and II above, the Foundation shall be operated and
administered in all respects and at all times in a manner that conforms in all respects to the
requirements set forth in Section 501(c)(3) of the Code and accompanying Treasury
Regulations. The Foundation, its Trustees and officers and employees are expressly
prohibited from undertaking, or omitting to undertake, any act or activity which would or
might jeopardize the Foundation's status as an organization organized and operated under
Section 501(c)(3) of the Code.
Article III
Termination of Foundation; Distribution Requirements upon Termination
Section 3.1 Events of Termination. The Foundation shall terminate and
distribute in the manner as provided in Section 3.2 below all of the Foundation's assets upon
the occurrence of any of the following events (the date of the occurrence of such event being
hereinafter referred to as the "Termination Date"):
3.1.1 Termination Three Years Following Death of Survivor of Grantors. The
Foundation shall terminate on that date which is three (3) years after the date of death of the
survivor of the Grantors.
3.1.2 Determination by Board of Trustees. The Foundation shall terminate
upon the determination by the unanimous vote of the Board of Trustees that the Foundation
should terminate.
3.1.3 De Minimis Assets. The Foundation shall terminate at any time after
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the death of the survivor of the Grantors if the Foundation has total assets having a fair market
value of One Hundred Thousand Dollars ($100,000) or less.
Section 3.2 Distribution of Assets Upon Termination of Foundation. Upon the
termination of the Foundation and the distribution of the Foundation’s assets in connection
with such termination, the Foundation’s assets (including all retained and undistributed
income at the time of termination) shall be distributed as set forth below in this Section 3.2:
3.2.1 Equal Distribution to Law College Association and BMI. Subject to
and following the discharge of all valid debts and obligations of the Foundation, one-half
(1/2) of the Foundation’s assets (including all undistributed income) shall be distributed to the
Law College Association and one-half (1/2) of the Foundation’s assets (including all
undistributed income) shall be distributed to the BMI; provided, however, that if either of the
Law College Association or the BMI is not then in existence, the one-half share of assets that
would have been distributed to such terminated organization shall be distributed directly to
whichever of the Law College Association and the BMI is then in existence.
3.2.3 Alternative Distributions. In the improbable event that neither of the Law
College Association and the BMI are in existence on the Termination Date, then all of the
Foundation’s assets shall be distributed to one or more qualifying charitable organizations as a
majority of the Board of Trustees shall determine, provided, that any organization receiving
any distribution of the Foundation’s assets upon the Foundation’s termination shall be a
corporation, trust, community chest, foundation, fund or other organization organized and
operated exclusively for religious, charitable, scientific, literary or educational purposes under
the provisions of Section 501(c)(3) of the Code (or any corresponding provision of any
subsequent revenue law), provided that any such organization (a “Distributee Organization”)
meets the following requirements:
(A) No part of the net earnings or assets of the Distributee Organization
shall inure to the benefit of any private shareholder, member, entity or individual (except for
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Distributee Organization’s payment to an individual of reasonable compensation for services
rendered to the Distributee Organization or affecting one or more of the Distributee
Organization’s purposes).
(B) No substantial part of the activities of the Distributee Organization
shall consist of carrying on propaganda or otherwise attempting to influence legislation.
(C) The Distributee Organization shall not participate or intervene in any
political campaign on behalf of (or in opposition to) any candidate for public office.
Article IV
Situs of Foundation
The Foundation is established under the laws of the State of Nevada. The Foundation
shall be administered and managed in Nevada and shall be governed by the laws of Nevada
applicable to trusts established, administered and managed in Nevada, including trust
accounting rules and laws of Nevada. Notwithstanding anything to the contrary herein, in all
events and without regard to such trust accounting rules and laws, trust “income” shall be
limited to items of interest, dividends (other than extraordinary dividends), rent, royalties, and
other periodic items (except for extraordinary items). Income shall never include any gain
from the sale of any trust asset or any extraordinary dividend or other extraordinary item,
rather such gain, extraordinary dividend or other item shall be added to principal and become
a part of the Foundation corpus. The Trustees shall have the right to change the situs of the
Foundation to a jurisdiction other than Nevada from time to time, or at any time, at the
discretion of a majority of the Board of Trustees.
Article V
Irrevocability
Section 5.1. In General. Except as otherwise provided herein, the terms of this
Declaration establishing the Foundation are and shall be irrevocable and no Person shall have
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the right to revoke this Foundation, or any part thereof, or to in any way amend, or alter the
provisions of this Declaration.
Section 5.2 Amendments to Comply With Requirements of Internal Revenue Code and
Other Applicable Law, Etc. Notwithstanding the provisions of Section 5.1, the Board of
Trustees shall have the right, by the vote of a majority of the Board of Trustees, to effect any
amendment or modification of this Declaration as may be necessary or desirable to establish,
continue or maintain the Foundation’s status as a Foundation organized and operated pursuant
to the requirements of Sections 501(c)(3) of the Code (or any successor provisions thereto) or
otherwise to ensure that the Foundation complies with the applicable state and federal law to
which the Foundation is subject (consistent always with the requirement that the Foundation
be organized and operated pursuant to Section 501(c)(3) of the Code). The Board of Trustees
is also authorized and specifically directed to make all such changes and modifications as may
be necessary to establish or maintain the Foundation as a Type I Supporting Organization
organized and operated pursuant to the requirements of Section 501(c)(3) and 509(a)(3) of the
Internal Revenue Code or other applicable law to which the Foundation is subject (consistent
with the foregoing requirements with respect to Section 501(c)(3) of the Code). No other
amendment or modification to this Declaration shall be made by any Person except as
provided in this Section 5.2. This shall include a prohibition against any Person increasing
the number of Trustees on the Board of Trustees; provided however, that the number of
Trustees on the Board of Trustees may be reduced to seven (7) or six (6) if one or all the
Founder Trustees should resign, become deceased or Incapacitated as provided below in this
Declaration.
Article VI
Foundation Governance; Trustee Provisions
Section 6.1 Board of Trustees; Appointment of Trustees, etc. The Foundation
shall be governed and managed by a governing board to be known as the “Board of
Trustees”. The Board of Trustees shall have ultimate authority over the conduct and
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management of the business, property and affairs of the Foundation. Each member of
the Board of Trustees, as provided herein, is referred to as a “Trustee.” The appointment
and tenure of the members of the Board of Trustees shall be determined as set forth below
in this Article VI. The Board of Trustees shall have those powers set forth below in this
Article VI, in Article VII and elsewhere in this Declaration. There shall initially be eight
members of the Board of Trustees made up of three classes. Three (3) of the Trustees shall
be Arizona Trustees, whose appointment shall be confirmed by the majority vote of the
Board of Directors of the Law College Association and whose retention, and/or removal and
replacement, shall be determined by the majority vote of the Board of Directors of the Law
College Association. Three (3) of the Trustees shall be UNLV Trustees, whose
appointment shall be confirmed by the majority vote of the Board of Regents of UNLV and
whose retention, and/or removal and replacement, shall be determined by the majority vote
of the Board of Regents of UNLV. Two (2) of the Trustees shall be Founder Trustees and
the currently serving Founder Trustees at the time of this Declaration are Beverly Rogers
and Rory Reid. A Founder Trustee shall only be removed in the event of death,
resignation or "Incapacity" (as defined below) of the Founder Trustee. All or any one or
more of the Arizona Trustees and their successors may be removed and replaced at any time
as provided in Section 6.1.2(B) below and all or any one or more of the UNLV Trustees and
their successors, may be removed and replaced at any time as provided in Section 6.1.2(C)
below. As used in this Declaration, the term “Incapacity” is defined to mean the
certification in writing by two licensed, board-certified physicians that an individual has
become physically or mentally incapacitated, whether or not a court of competent
jurisdiction has declared the individual incompetent, mentally ill or in need of a guardian or
conservator and "Incapacitated" refers to a state of such "Incapacity."
6.1.1 Board of Trustees; Founder Trustees; Arizona Trustees; UNLV Trustees.
Upon appointment and acknowledgement of the Arizona Trustees and the UNLV Trustees by
way of execution of this Declaration of Trust (which execution attests that each Trustee has
read and agrees to abide by the Conflict of Interest policy), the Foundation shall have eight (8)
members of the Board of Trustees (with such members being referred to collectively as the
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“Trustees” and individually as a “Trustee”). As further provided in this Declaration of Trust,
the Foundation may have a different number of Trustees (six (6), seven (7) or eight (8) in the
event that at any time two or more of the Founder Trustees have resigned, become
Incapacitated or die. The Foundation shall have at all times three (3) Arizona Trustees, and
the Foundation shall have three (3) UNLV Trustees. At no time shall the Board of Trustees
be constituted so as to be controlled by one or more disqualified persons (as defined in
Section 4946 of the Code) other than “foundation managers” as defined by the Code, and
other than one or more organizations described in Sections 509(a)(1) or 509(a)(2) of the Code,
as amended. The method of removal and/or election of successors in each class of Trustees is
set forth below in Section 6.1.2. The initial eight Trustees having the rights, privileges, duties
and responsibilities as set forth in this Declaration shall be as set forth in the preamble and on
the signature page.
6.1.2 Tenure, Trustee Removal and Replacement, Successor Trustees, Etc.
(A) Founder Trustee(s); Successor to Founder Trustees. A Founder Trustee
shall continue as a Trustee until his or her resignation, Incapacity or death. Rory Reid has
been named as the successor Founder Trustee to James E. Roger such that the currently
serving Founder Trustees are Beverly Rogers and Rory Reid. No Founder Trustee may be
removed and replaced. If a Founder Trustee should cease to serve due to resignation,
Incapacity, or death, the remaining Founder Trustee shall be the sole serving Founder Trustee.
If both currently serving Founder Trustees should cease to serve due to resignation, Incapacity
or death, the Founder Trustee class shall terminate, there shall no longer be any Founder
Trustees serving on the Board of Trustees and thereafter the Board of Trustees shall be
comprised of six (6) Trustees, namely three (3) Arizona Trustees and three (3) UNLV
Trustees.
(B) Replacement and Removal of Arizona Trustees. Each of the initial
three (3) Arizona Trustees shall hold office until an Arizona Trustee’s resignation, Incapacity,
death or removal. The Board of Directors of the Law College Association shall have the
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right, at any time and from time to time, to remove and replace any initial or successor
Arizona Trustee by written notice (the "Replacement Notice") to Board of Trustees, which
Replacement Notice shall state the name of the Arizona Trustee being removed and shall
further state and name and designate the Person to be the successor to the removed and
replaced Arizona Trustee. The removed Arizona Trustee's term shall end immediately upon
the receipt by the Board of Trustees of the Replacement Notice and the term of the successor
to the replaced Arizona Trustee shall commence immediately upon the receipt by the Board of
Trustees of the Replacement Notice. If there is a vacancy in the office of Arizona Trustee by
reason of resignation, death or Incapacity, the Board of Directors of the Law College
Association shall name the successor in a written Replacement Notice to the Board of
Trustees and the successor Arizona Trustee shall commence serving upon the receipt by the
Board of Trustees of such Replacement Notice. The Dean of the College of Law may act as
the agent with signatory authority on behalf of the Board of Directors of the Law College
Association and may execute and deliver such documents or instruments on behalf of the Law
College Association reflecting the decisions and directions of the majority of the members of
the Board of Directors of the Law College Association.
(C) Replacement and Removal of UNLV Trustees. Each of the initial three
(3) UNLV Trustees shall hold office until an UNLV Trustee’s resignation, Incapacity, death
or removal. The Board of Regents of UNLV shall have the right, at any time and from time
to time, to remove and replace any initial or successor UNLV Trustee by written notice (the
"Replacement Notice") to the Board of Trustees of the Foundation, which Replacement
Notice shall state the name of the UNLV Trustee being removed and shall further state and
name and designate the Person to be the successor to the removed and replaced UNLV
Trustee. The removed UNLV Trustee's term shall end immediately upon the receipt by the
Board of Trustees of the Replacement Notice and the term of the successor to the replaced
UNLV Trustee shall commence immediately upon the receipt by the Board of Trustees of the
Replacement Notice. If there is a vacancy in the office of UNLV Trustee by reason of
resignation, death or Incapacity, the Board of Regents of UNLV shall name the successor in a
written Replacement Notice to the Board of Trustees and the successor UNLV Trustee shall
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commence serving upon the receipt by the Board of Trustees of such Replacement Notice.
The Executive Director of the BMI may act as the agent with signatory authority on behalf of
the Board of Regents of UNLV and may execute and deliver such documents or instruments
on behalf of the Board of Regents of UNLV reflecting the decisions and directions of the
majority of the members of the Board of Regents of UNLV.
Section 6.2 Board of Trustees Actions.
6.2.1 In General.
(A) Majority Vote Required, Etc. Except for and subject to the
requirements (1) that any decision by the Board of Trustees to terminate the Foundation prior
to that date which is three years following the death of the survivor of the Grantors as set forth
in Section 3.1.2 and (2) that any determination to pay reasonable compensation to the
Trustees each be determined by the unanimous vote of the Board of Trustees as set forth in
Section 6.4.2, all other acts and actions of Board of Trustees of the Foundation shall be taken
by the majority vote of the Trustees. If at any time an Arizona Trustee or a UNLV Trustee
has resigned or become deceased or Incapacitated and a successor Trustee has not yet been
named pursuant to the provisions set forth in Section 6.1.2 above, the Board of Trustees shall
not take any action until the resigned, deceased or Incapacitated Trustee has been replaced by
the majority vote of the Board of Directors of the Law College Association (in the case of any
Arizona Trustee) or by the majority vote of the Board of Regents of UNLV (in the case of any
UNLV Trustee); provided, however, that if a successor Trustee has not been named in
accordance with the procedures set forth in Section 6.1.2(B) or Section 6.1.2(C) above, as the
case may be, within fifteen (15) business days of the resignation, death or Incapacity of the
prior Trustee, the Board of Trustees shall then have the right to conduct business, and a
quorum of Trustees shall for all purposes be deemed to exist, so that valid and binding actions
may thereupon and thereafter be taken by the Foundation by the act or actions of the then
remaining Trustees. Notwithstanding anything to the contrary herein, in absolutely no event
may any action on behalf of the Foundation be taken in circumstances where one or more
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Founder Trustees do, or could possibly be construed to make up a majority of Trustees acting
with regard to such action.
(B) Regular Quarterly Meetings. The Board of Trustees shall hold regular
quarterly meetings (or more frequent meetings as may be necessary) to review the policies of
the Foundation and generally manage and oversee the Foundation’s activities and affairs.
The regular quarterly meetings shall be held at the offices of the Foundation on such day and
at such time as a majority of the Board of Trustees shall specify. A majority of the Board of
Trustees shall comprise a quorum for the conduct of the business of the Board of Trustees at
the regular quarterly meetings or any special meetings of the Board of Trustees. The
intention generally is that members of the Board of Trustees shall attend the regular quarterly
meetings in Person although if there are circumstances where it is impossible, unreasonable or
difficult for a Trustee to be personally in attendance, such Trustee may attend by telephonic or
video conference. At meetings of the Board of Trustees the Trustees shall review and
determine all matters regarding the policies of the Foundation and shall generally function in
the same manner as the Board of Directors of a corporate charitable entity which is a Section
501(c) organization, subject always to the provisions of this Declaration.
(C) Special Meetings. Any member of the Board of Trustees may request a
special meeting of the Board of Trustee’s at any time upon five (5) business days written
notice to the other members of the Board of Trustees, which written notice may be delivered
by electronic transmission, facsimile transmission, hand delivery, common carrier or the
United States mail. The Trustee requesting a special meeting shall provide an agenda of the
items to be discussed at such meeting and shall circulate such agenda to the other members of
the Board of Trustees along with the written notice of the special meeting.
(D) Actions in Writing. The Board of Trustees shall have the right and
power, at any time and from time to time, to take "actions in writing" in lieu of a meeting. All
such actions in writing shall have the same force as a resolution or action taken at a meeting
of the Board of Trustees so long as such "actions in writing" are signed by that number of
Trustees required to approve any matter pursuant to this Declaration (i.e., if a vote of a
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majority of the Trustees is required to approve an action then an "action in writing" to be
effective need only be signed by a majority of the Board of Trustees and if a unanimous vote
is required pursuant to this Declaration then the "action in writing" shall be signed by all of
the Trustees).
6.2.2 Records of Meetings, Etc; Actions in Writing. At each meeting of the
Board of Trustees, the Chairman shall preside over the meeting and a recording secretary shall be
appointed who shall prepare the minutes of the meeting and prepare for signature any material
decisions the Board of Trustees make with respect to any action or decision the Foundation is
taking. As provided in Section 6.2.1(D) above, in lieu of a meeting the Board of Trustees may
authorize the Foundation and its Chairman and officers to take action by executing and
delivering an “action in writing” in the nature of a Foundation resolution. Minutes of Board of
Trustee meetings shall be circulated to the Trustees and approved by the Trustees. Any
Foundation action that a Trustee wishes permanently to record shall likewise be reflected either
in minutes of the Board of Trustee meetings or in an “action in writing” signed by the requisite
number of Trustees required to approve any such action. All minutes of Board of Trustee
meetings and all “actions in writing” shall be permanently maintained as part of the books and
records of the Foundation.
6.2.3 Chairman of the Board; Officers. Immediately following the
constitution of the full eight member Board of Trustees, the Board of Trustees shall name a
"Chairman" of the Board of Trustees by the majority vote of the Board of Trustees and the
Board of Trustees may name such other officers of the Foundation as the Trustees, by
majority vote, shall determine including, without limitation, any naming any Person as the
President, Vice-President, Secretary, Treasurer and any Assistant Secretary or Assistant
Treasurer of the Foundation. Such officers shall have such duties and responsibilities as the
Board of Trustees shall delegate to them and such officers shall perform these duties and
responsibilities subject always to the direction and control of the Board of Trustees. The
Board of Trustees may at any time remove and replace any officer or may abolish any officer
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position, as the Board of Trustees shall determine in its sole discretion, in accordance with the
provisions of this Section 6.2.3.
6.2.4 Committees. The Board of Trustees shall or may establish, by
majority vote, such committees as the Board of Trustees deems to be useful, including an
Audit Committee and an Investment Committee. Any such committee shall function and act
under the direction and control of the Board of Trustees at all times and with respect to all
matters and all decisions, recommendations or actions of any committee shall at all times and
in all circumstances be subject to the review and approval of the full Board of Trustees.
Section 6.3 Provisions Applicable to Successor Trustees. No successor Trustee
shall be liable for the acts, omissions or defaults of any prior Trustee. No successor Trustee
shall have any duty to audit or investigate the accounts or administration of any prior Trustee.
A successor Trustee may accept the accounting records of any prior Trustees showing assets
on hand without further investigation.
Section 6.4 Reimbursement of Expenses; Compensation.
6.4.1 Reimbursement of Expenses. Any Trustee (or other Person) providing
services to or on behalf of the Foundation shall receive reimbursement from the Foundation
for reasonable expenses incurred in activities directly relating to the Foundation's activities or
purposes.
6.4.2 Trustee Compensation. Grantors intend that the Trustees, other than the
Founder Trustees (including any successor Founder Trustee) who shall never receive any
compensation for services, may receive reasonable compensation for services as a Trustee
rendered to an organization organized and operated under Section 501(c)(3) of the Code in
light of all relevant facts and circumstances; provided, that the total annual compensation
received by any single Trustee shall never exceed $50,000. If the Foundation at any time no
longer has any Founder Trustees, the Trustee compensation shall be that as is being paid at the
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death, resignation or Incapacity of the last Founder Trustee so long as such compensation is
reasonable. All compensation for employees and consultants shall also be reasonable and
shall be determined by the majority vote of the Board of Trustees. The applicable Trustees
making any compensation determination shall engage as necessary or desirable independent
legal counsel to render counsel as to the reasonableness of any compensation and may also
engage unrelated and independent experts on compensation policies of non-profit
organizations who shall review the compensation policies, procedures and practices of the
Foundation and shall consult with the determining Trustees with respect to the same with the
objective that the Foundation shall always have compensation procedures and policies, and
shall always pay compensation to members of the Board of Trustees and others engaged by
the Foundation as employees, independent contractors, service providers or consultants that
comply with applicable law, including, without limitation, laws and regulations applicable to
the payment of compensation by charitable organizations organized and operated under
Section 501(c)(3) of the Code.
Section 6.5 Resignation. A Trustee may resign at any time. Notice of resignation
shall be given to the other Trustees in a writing sent by certified mail to their last address as
indicated in the Foundation records. Any such resignation shall be effective 30 days after the
date such notice is sent to all such other Trustees. If any Arizona Trustee resigns, such
Trustee shall be replaced promptly by the majority vote of the Board of Directors of the Law
College Association as set forth in Section 6.1.2(B). If any UNLV Trustee resigns, such
Trustee shall be replaced promptly by the majority vote of the Board of Regents of UNLV as
set forth in Section 6.1.2(C).
Section 6.6. Trustee Signatures. Any agreement, instrument, document or other item
to be entered into by the Foundation, shall be signed by at least two Trustees except as
provided in the last sentence of this Section 6.6. Notwithstanding the foregoing, any tax
return or report or similar governmental information report of the Foundation that is to be
filed with any government agency may be signed by only one Trustee, who shall be the
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Trustee designated as the Treasurer of the Foundation or such other Trustee as the Board of
Trustee shall designate by the majority vote of the Board of Trustees.
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Article VII
Powers of Board of Trustees
Section 7.1 General Powers. Subject always to the provisions of this Declaration, to
carry out the purposes of this Foundation, and subject to any limitations stated elsewhere in
this trust instrument, the Board of Trustees is vested with the following powers with respect to
the Foundation’s assets or any part thereof, in addition to those powers now or hereafter
conferred by law, such powers to be exercised in all respects on behalf of the Foundation and
in a manner which is fully consistent with the organization and operation of the Foundation as
an organization described in Section 501(c)(3) of the Code. To the extent that any power
granted herein is inconsistent with the organization and operation of the Foundation as a
Section 501(c)(3) organization, then such power shall be severed from this trust instrument
and shall not be exercised by the Board of Trustees.
7.1.1 Dealing with Property. To invest and reinvest the assets of the
Foundation in every kind of property, real, personal or mixed and every kind of investment,
which Persons of prudence, discretion and intelligence acquire for their own account and
which a Foundation described in Section 501(c)(3) is permitted to acquire under applicable
laws and regulations.
7.1.2 Voting. To (i) vote in person or by proxy in respect of all securities; (ii)
become a party to the reorganization, consolidation, or merger of any corporation or other
entity; (iii) assent to the dissolution and liquidation of any corporation or other entity;
(iv) exchange or surrender securities; (v) deposit securities with creditors', bondholders' or
shareholders' committees or other protective groups; (vi) pay all assessments, subscriptions,
and other sums for the protection of securities; and (vii) exercise any options, conversion
privileges or subscription rights as are or may be lawfully exercised by Persons holding
similar property in their own individual right.
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7.1.3 Title to Assets. To take and hold in its own name, or in the name of a
nominee or nominees, with or without disclosure of fiduciary status or in negotiable form, any
property or securities of the Foundation.
7.1.4 Expenses. To (i) incur and pay the fees and expenses of the
administration of the Trust, including, without limitation, reasonable attorneys' fees; (ii)
employ or engage the services of any Person, including, without limitation, one or more
investment advisers, to perform any services for the Trust; and (iii) pay for all services
rendered.
7.1.5 Deposit and Withdrawal of Funds. To authorize for deposit, collection, or
transfer any and all checks, notes, drafts, or other orders for the payment of money; and to
withdraw upon checks, notes, drafts, or other orders for the payment of money, signed by the
Trustee, the funds of the Trust.
7.1.6 Insurance. To carry, at the expense of the Trust, insurance of such kinds
and in such amounts as the Trustee deems advisable to protect the Trust.
7.1.7 Litigation. To commence or defend litigation with respect to the
Foundation and to seek the assistance of the courts in all matters affecting the administration
of the Foundation including, without limitation, accounting matters and disclaimers on behalf
of the Trust. The Trustee is authorized to defend, at the expense of the Trust, any contest or
other attack of any nature on the Trust.
7.1.8 General Powers. To do such acts, to take all such proceedings, to execute
and deliver such documents, and to exercise such powers as may be necessary or desirable to
carry out the purposes of the Foundation, subject always to the fiduciary duties which the
Board of Trustees have with respect to their discharge of their duties and responsibilities
under this Declaration.
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Article VIII
Indemnification; Insurance
Section 8.1 Protection of Trustees and Officers. The Trustees and officers of the
Foundation performing services for or acting on behalf of the Foundation shall have no liability
to the Foundation or to any of the Trustees for any mistakes or errors in judgment or for any act
or omission believed by them in good faith to be within the scope of authority conferred upon
them by this Declaration, except that the Trustees and officers of the Foundation shall be liable
for acts and omissions involving their recklessness or willful misconduct in bad faith. Except
for acts of omission that constitute recklessness or willful misconduct in bad faith, the Grantors
intend that each Trustee be expressly exculpated and released from any and all liabilities, claims,
damages or other items with respect to the Foundation, its beneficiaries, and any other Person.
The fact that the Trustees or officers of the Foundation have obtained the advice of legal counsel
for the Foundation that any act or omission by them is within the scope of the authority conferred
upon them by this Agreement, shall be conclusive evidence that they believed in good faith such
act or omission to be within the scope of the authority conferred upon them by this Agreement,
but the Trustees or officers shall not be required to procure such advice to be entitled to the
benefits of the preceding sentence.
Section 8.2 Indemnification. The Foundation shall indemnify each Trustee and each
officer, agent or other Person providing services to or acting on behalf of the Foundation in
respect of any payment made, personal liability incurred by him or her or any other item (A) in
the ordinary and proper conduct of the Foundation’s business, (B) for the preservation of the
Foundation’s business or property, or (C) with respect to any other act or omission pursuant to
this Declaration. The Foundation is not required to indemnify a Trustee, officer or Person in
respect of payments made or liability incurred by it if such payments or incurrences were made
or incurred as a result of the recklessness or willful misconduct in bad faith of the Trustee, officer
or other Person seeking indemnification. Such indemnification shall include, but is not limited
to, indemnification for the costs and expenses of any threatened, pending or completed action,
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suit or proceeding, whether civil, criminal, administrative or investigative (including, without
limitation, any action threatened or instituted by or in the right of the Foundation), by reason of
the fact that the Person to be indemnified is or was a Trustee or officer of the Foundation. If a
Trustee, officer, or other Person is entitled to indemnification with respect to a matter, the costs
and expenses to be indemnified shall include, without limitation, attorneys’ fees, filing fees,
court reporters’ fees and transcript costs, judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or her him in connection with such action, suit or
proceeding.
Section 8.3 Insurance. The Foundation may purchase and maintain insurance or
furnish similar protection for such person who is or was a Trustee or officer of the Foundation, or
is or was serving at the request of the Foundation as a manager, employee, consultant or agent of
the Foundation, against any liability asserted against him or her and incurred in any such
capacity, or arising out of his or her status as such, whether or not the Foundation would have the
obligation or the power to indemnify him against such liability under the provisions of this
Article VIII.
Article IX
Miscellaneous Provisions
Section 9.1 Governing Law. The validity of this trust instrument and the construction
of its provisions shall be governed by the laws of the State of Nevada in force from time to
time. This Section shall apply regardless of any change of residence of the Trustee or any
beneficiary, or the appointment or substitution of a Trustee residing or doing business in
another state or country.
Section 9.2 Invalid Provisions. If any provision of this trust instrument is invalid,
void or unenforceable, then the balance of the provisions hereof shall remain operative and
shall be carried into effect. If any clause or provision of this trust instrument violates any
provision of law, or otherwise will or may result in the Foundation not being described as an
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organization organized and operated in accordance with the requirements of Section 501(c)(3)
of the Code, then such provision shall automatically be stricken and shall not be part of the
provisions of this trust instrument.
Section 9.3 Headings. Clause headings are not part of this trust instrument.
Section 9.4 Gender. Whenever it shall be necessary to interpret this trust instrument,
the masculine, feminine and neuter personal pronouns may be construed interchangeably, and
the singular shall include the plural and the plural the singular.
Section 9.5 Bond. No bond or other security shall be required at any time from any
Trustee.
Section 9.6 Dealing with Securities. The issuer (including transfer agents) or custodian
of any shares of stock or mutual funds shall be under no liability to see to the Foundation’s
proper administration. Upon the transfer of the right, title and interest in and to such shares
by the Foundation upon the signature of any Trustee hereunder, such issuer or custodian shall
conclusively treat the transferee as the sole owner of such shares. If any shares, cash, or other
property shall be distributable at any time under the terms thereof, such issuer or custodian is
fully authorized to pay, deliver and distribute the same to the Foundation and shall be under
no liability to see to the proper application thereof. Until the issuer, custodian, or transfer
agent shall receive from some person interested in this Foundation written notice of any event
upon which the right to receive may depend, the issuer, custodian, or transfer agent shall incur
no liability for payments made in good faith to persons whose interests shall have been
affected by such event. The issuer, custodian, or transfer agent shall be protected in acting
upon any notice or other instrument or document believed by it to be genuine and to have
been signed or presented by the proper person.
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Section 9.7 Counterparts. This Declaration may be executed in several counterparts
and all executed counterparts shall constitute one Declaration, binding on all parties, whether
or not all parties have executed the original or the same counterparts.
IN WITNESS WHEREOF, this Declaration of Trust of the James E. and Beverly
Rogers Foundation is executed and delivered as of the Effective Date set forth above.
Grantors:
_________________________________
Beverly Rogers, on behalf of herself
Individually and as the personal representative of